IN THE SUP ERIOR COURT OF THE STATE OF DE LAWARE IN AND FOR KENT COUNTY
JOHN DOE, ) ) C.A. No. K13C-03-04 1 JTV Plaintiff, ) ) v. ) ) BRIANA SLA TER, MARK C. SLATER, ) and APRIL P. SLA TER, ) ) Defenda nts. )

Submitted: October 8, 2014 Decided : Novem ber 12, 2014

Robert C. Collins, E sq., Sc hwartz & Schwar tz, Dover, Del aware. Attorney for Plaintiff. Matthew E. O’ Bryne , Esq., Casarino , Christm an, Shalk, Ransom

& Doss, Wilm ington, De laware . Attor

ney fo r Defe ndants.

Upon Consideration of Defendant’s Motions F

or Reconsi

deration of Commissioner’s Order GRANTED In Part DENIED In PartJohn Doe

v. Slate r, et al. C.A. No. K1 3C-03-041 Novem ber 12, 210 4

2 VAUGHN, Pr esident

Judge ORDER Upon consideration of the defenda nts’ Moti on for Rec onsiderati on of Com miss ione r’s Order, the plainti ff’s opposition, a nd the rec ord of the c ase, it appears t hat: 1. The defendants, Briana Slater, Mark Slater, and April

Slater, have filed
a motion to reconsider a Comm issioner’s decision which denied the defen dants’ motion to compel the plainti ff to provi de discover y conc erning ce rtain m ental hea lth treatment experi enced by the pl aintiff. 2. On March 29, 2013, t he plaintiff

filed a c omplaint against

the defen dants alleging injuries resulting from a car a ccident that occurred on March 31, 2011. The compl aint contends that the accident occurred when Br ia na Slater , driving southbound

on Peacht

ree Run, failed to stop at a st op sign at Ir ish Hill R

oad and drove her car into the plaintiff’s path of travel, cau sin g the plaintiff to hit B riana Slate r’s driver sid e. The plaint iff alleges that Bria na Slater is the sole cause of t

he accident and claim s dama

ges which include “ conscious pain and suff ering,”“loss of enjoyment,” and “

physic al injur

y.” The def

endants disp ute liabili ty and the nature and exten d of the pl aintiff’s damages

. 3. Itappears that the plaintiff was admitted

to Meadow

Wood Behavioral Hea lt hSy st em, a ps ychi atri c fac ili ty, on or about M arch 22, 2011, nine d ays pr ior to the accident. He was released betw een that date and the date of the accident. I t further appears t hat the pl aintiff w as then tre ated at Me adow W ood at som e pointJohn Doe

v. Slate r, et al. C.A. No. K1 3C-03-041 Novem ber 12, 210 4

1 Delaware Rules of Evidence 503(b) de scribes the mental health care provider- pa tient privileg e in pert

inent par t: A patient has a privilege to refuse to disclose and to pr event any othe

r person from disclosing confidential communications made for the purpose of diag nosis or treatment of the patient’s phy sical, mental or emotional condition . . . among the patient, the patient’s mental health provider, physician or psychother apist . . . . 3 after the acci dent, alth ough th e date or dat es do not appear to b e in the reco rd. 4. On September 20, 2013, the defendants filed a mot ion to compel the plaintiff to produce medic al recor

ds from Meadow Wood. The defendants contended that the plaintiff

’s m ental stat e at the time of and follow ing the acc ident are rel evant to determining whether the plaintiff’s conduct contributed to the a ccident and the nature and exten t of his in juries. The plain

tiff oppose d the m otion, contending that Delaware Rule of Evidence 503(b), 1 the m ental hea lth care provider- patient p rivil ege,
was not waived and that any m ental health re cords we re absolut ely pr ivileged a nd not discover able. 5. The motion

to com pe l was hea rd b y a Superi or Court Comm issioner. The Comm

issioner denied th e mo tion. The defendant s filed a m

otion for reconsid eration of

the Commissioner’s o rder pursu ant to Sup erior Court Rule 132. 6. Superior

Court Rule

132(a)(3 )(iv) provides that a judge may reconsider
an order issued by a C omm issioner on non case-d

ispositive m

atters onl y whe re the movant demon strates t

hat the Com

missio ner’s o rder is ba sed upon f indings of fact that are clea rly erroneous, o r is contrar y to law, or is an ab use of dis cretion. 7. The defendants contend that the C omm issioner’ s order is contrary to law because filing a pe rsonal inj ury ac tion waive s the plaint iff’s privi lege as to a

llJohn Doe

v. Slate r, et al. C.A. No. K1 3C-03-041 Novem ber 12, 210 4

2 In the course o f discuss ing thei r conten tions, the defenda nts discus s two prior

accide nts the plaintiff had been involved in, one less than two months before the one in this case. The y describe certain circumstances re lating to those accidents, including pain medications which the plaintiff took after the second accident, and pain medic ations which the plaintiff took after the accident in this case. They further state that they

submitted an interrogatory to the plaintiff asking him to identify all hospitals, mental hea lth facilities or medical institutions for which he was treated for mental or emotional difficulties, or drug or alcohol abuse, for 20 y ears prior to the accide nt. 4 relevant medic al inform ation; that the plainti ff has re lied on fac ts regard ing his mental health in order to esta blish his claims and defenses, and in doing so has waived his mental heal th privilege under Rule 503(d)(3); that the plaintiff has expressly claim ed that his menta

l health treatm ent and hist ory ha d no role in ca using the accident , which i s a waive r of the pr ivilege; th at the plaintiff waived his Rule 503 p rivile ge when he signed and delivered a medical records waiver , which included psychi atric records, to his law yer; and t hat pub lic policy requires that the plaintiff cannot waive his Ru le 503 pri vilege for his own benefit and then seek to us e th e sa me privilege to deny

the defen dants from

discovering the sam

e inform ation. 2 8. The plain

tiff contends that he took deliber ate steps to main

tain his Rule 503 privilege in order to protect his medical inform ation; that he purposely decided not to seek em

otional or p sycho logi cal damages in ord er to pre serve his provider/p atient

privilege as it rela tes to his m

ental hea lth treat

ment; that his mental state is not

at issue a nd his claim

is specifi cally

limit ed to phy sical inj uries; tha t the medical authorization given to his attorney does not have an y eff ect on his w aiver of Rule 503 because his attorney never re quested or viewed m ental hea lth recor

ds; and that failing to maint ain the Rul e 503 privil ege would have broad ly chilling effect s onJohn Doe

v. Slate r, et al. C.A. No. K1 3C-03-041 Novem ber 12, 210 4

5 patients ’ relationsh ips with t heir therap ists. 9. Rule 503(d) (3) reads as follow s: There is no privile ge under thi s rul e for a com munic ation re le vant to an issue of the physical, mental or emotional condition of the patien t in an y proc eeding in w hich the patient relies upo n the conditi on as an ele ment o f the patient’s cl aim or defense . . . The issue is whether

the plainti ff’s m

ental hea lth treat

ment r ecords are rel evant to an

y physic al, m ental or e motiona l condition up on which the plaintiff relies. 10. Case prepa ratio n whic h has taken place after t he Commiss ione r’s decision has produc ed me di cal evi dence whi ch was not available

to the Commissioner. According to the record of the case, part of the plaintiff’s alleged injuries from

the acci dent were injuri es to his nec k an d b ack . Fr om a report prepared by Dr. A ndrew Ro binson, it a

ppears the

defendant

was tre ated for lower ba ck pain by
a Dr. A meer , who exp ressed the

opinion that t

he plaintif

f suffered from

incurable and painfulconditions of

the lower back, which

were tr eated wi th reasona

ble am ounts of opiates. Dr. Robinson disagreed with these statements by Dr. Am eer. 11. Dr. Damian Andri sani, who was retained by the defense t o examine the plaintiff , expres sed the fol lowing opini on: To further complicate m atters, he [the plaintiff] was hospitalized on 3/22/2011 f or se ve re depre ssion and s uicidal ideations. These is sues m ay be signif ican t c ontributing

factors to his needs for pain m edic ation s through February 2012, provided by Dr. A meer.John Doe

v. Slate r, et al. C.A. No. K1 3C-03-041 Novem ber 12, 210 4

6 12. The plain tiff ob

jects to my

considering this information, which was submitted after brief

ing on t he mot

ion was co mplet ed. How ever, I think it is reasonabl e to take into account all rele vant infor

matio n which ei ther part

y subm its, and I am satisfie d that the plaintif f has had a

fair oppor

tunity to be heard

on all inform ation whic h has been s ubmitt ed. 13. Based upon

the above-des cribed m

edical ev idence, I conclude that the records of t he plaintiff’s March 22, 2011 hospitalization at Meadow Wood are relevant to a full evaluation of the plaintiff’s alleged back injury and the tre atme nt of that injury . I therefore co nclude, ba sed upon thecurrent state of t he record, that the Commissi oner’s denial of t he motion to co mpel was contrary to la w. The plaintiff shall provid e those re cords to the defendant s within 60 d ays. 14. I am not

persuade d, on this rec ord, that any m ental hea lth records prior to the Marc h 22, 2011 hosp italizati on are re levant, a nd in my opinion the reque st for all records f

or 20 ye ars prec eding the a ccident is extrem ely over broa d. However, the plaintiff shall provi de the def

endants wi th the date

and locati on of any

menta l health treatment which he r

eceived in the six-m

onth period p receding

the acciden t. With regard to me nta l health treatm ent after the acci dent, theplaintiff shall provi de the defendants with the dates of his treatment at Meadow Wood Hospita l refer red to in his answer to interro gatory 14. This i nform ation shall be pr ovided with in 30 day s. If, after c ounsel for the defen dants has ha d an opportunity to e xamine the recor ds from the Marc h 22, 2011 hosp italizati on and is made awa re of thedate and lo cation of other treatment as provided herein, counsel believ es that the records of suchJohn Doe

v. Slate r, et al. C.A. No. K1 3C-03-041 Novem ber 12, 210 4

3 I am not persuaded that the sig ning of a standard medical relea se form at the request of his attorney which wa s not utilized by the attorney to obtain any mental hea lth records waives the assertion of the pr

ivilege . I fi

nd it unnec essary

to addre ss the pla

intiff’s other contentions

. 7 treatment are r

elevant, he can fi le a new motion seeking suc h records

. 3 15. Theref

ore, the motion for rec onsiderati on i s granted in part and denied in part

. IT IS SO ORDERED

. /s/ James T. Vaughn, Jr

. Preside nt Judge

cc: Prothonotary Order D istribution File